Generally, a defendant's or witness's out of court statements are not admissible to prove their truth in court. This is the hearsay rule. There are many exceptions to the hearsay rule, however, including an adoptive admission.An adoptive admission is generally where the defendant, knowing the content of an accusation against him, adopts the truth of the accusation by his words or conduct.This often comes up when the police plant someone in a jail cell with or next to the suspect. The cellmate will ask the suspect questions about the crime. The suspect may simply agree with the cellmate or may boast about his crimes. For example, let's say the defendant makes a statement, "Yeah, man, that guy didn't know who he was messing with." That statement is admissible by itslef as an admission. But it becomes much more powerful as an adoptive admission when it is coupled with the cellmate's question, "You shot the guy because of the way he looked at you?"Sometimes a defendant can adopt an accusation by his silence. If someone is accused of a crime under circumstances where he could hear, understand, and reply to the accusation, and he does not respond, both the accusation and his response (or lack thereof) may be admitted in court. The prosecutor can argue from this that the defendant admitted the crime.Similarly, if the defendant responds to an accusation in a way that is evasive or equivocal, that can be admitted in court.The factors to look for to determine if silence can be admitted as an adoptive admission include:1. whether the accusation was made in the defendant's presence;2. whether the defendant heard and understood the accusation;3. whether, in the circumstances, the defendant naturally would have denied the accusation; and 4. whether the defendant could deny but didn't.The idea behind an adoptive admission by silence is that most people, if falsely accused of a crime, would immediately deny it. When someone does not deny it, that is an indication that the person has a guilty conscience. A person's own words, or under these circumstances, their lack of words, can be powerful evidence against the defendant.On an important note, if there is an indication that the defendant's silence was based on him invoking his right to remain silent under the Fifth Amendment, his silence cannot be used against him. For interesting criminal law concepts sent to your inbox, join the Criminal Law Community.

In the situation I am personaly dealing with, the defendant had invoked his fifth Amrndment Right to remain silent. His court appointed conflict panel attorney knew it. He even made a comment to the defendant during trial "look, if you are not going to get up on the stand and say something in your own defense, why then should I? This Attorney also refused to allow defendant to fire him for his blatant refusal to do pretty much anything with respect to representing defendant in his case at trial. And responded to defendants request to fire counsel and seek to replace him with private counsel, appointed counsel responded with "a little late for that. Don't ya think? Worse still, counsels failure to file pretrial motions, investigate the case period, interview or call to testify even 1 of defendants 7 witnesses to testify in his defense, or make timely objections throughout the trial, counsel had effectively denied defendants rights on direct appeal! And still he contends that he had provided defendant with adequate representation at trial in response to our Habeas Corpus writ.

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Dennis Waterman

9/24/2018 07:04:54 pm

This sort of trickery should never be allowed when the defendant had remained silence during both the Preliminary trial as well as the criminal trial. Especially when review of the trial transcript clearly indicates that the defendant was invoking his fifth ammendmant right, he also had several witnesses who had come foreward (and even gave statements that are in the record), yet defendants trial counsil (who was appointed by the trial court) who had failed to interview, let alone call to the stand to testify for the defense a single one of the 6 witnesses know about at trial. Worse still, the appointed counsil mentioned above "never met with, called or otherwise interviewed his own client, the defendant. Not before. Not during. And not after his criminal trial. And the final blow to justice as a whole came when this very same defense attorney when inquired to about why no witnesses? Especially when the transcript proves that there were 2 witnesses the the attorney who represent the defendant actually responded to the question by stating "in the record" {that he had spoken to both of these witnesses, but that they had both "DECLINED TO TESTIFY"! I'llwill state for the record This is just another of the many "false statements" employed by the Prosecution, the defense on both sides, the S.B.C.Sheriffs and even the district court judge was involved in this conspiracy to convict an innocent young man.
You are probably asking "how would you know? I am happy to answer that question. Because was 1 of the 2 witnesses who were removed from the courtroom and identified as witnesses to be called for the defenseof defendant. I was made to stand outside the courtroom in the hallway for a week where I stood waiting to be called to testify to what I had direct personal knowledge of and relative to this case. When in fact, I was never contacted by anyone after I had to pursue counsil down the hall and into the stairwell before catching up with counsil and was finally able to give to him a condensed version of what knew and WANTED TO TESTIFY TOO"!
For counsel to outright LIE to the states attorney generals office and falsly represent my own and anothers wishing to "DECLINE TO GIVE TESTIMONY" during this LIFE SENTENCE CASE is absolutely unconscionable.
Please note; I for one want this record set straight!

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Blythe Leszkay is a successful and experienced criminal attorney, criminal law professor, and consultant to writers and filmmakers. See About Me. This blog is intended to answer common criminal law questions, dispel misconceptions, and explain misunderstood criminal law concepts. It is also a place to discuss any crime or law related topics of interest. Contact me for a free initial consultation on your film or writing project.